‘Unacceptable’ delays on freedom of information appeals

Hundreds of people appealing against the refusal of public bodies to release information are facing backlogs and long delays, The Ferret can reveal.

At the end of October, 284 of 451 appeals to Scotland’s freedom of information watchdog – nearly two thirds – were yet to be allocated to an investigator. The average wait was over eight months.

The Scottish Information Commissioner has also taken more than a year to investigate 84 appeals, including 15 which lasted more than two years. This breaches the target to resolve appeals within four months.

Campaigners have branded the delays “unacceptable”, warning that “information delayed is essentially information denied”. They called on the Scottish Parliament to boost the commissioner’s funding.

The commissioner’s office accepted that the delays were “unfortunate”, and promised to take action to reduce them. It pointed out there had been a significant rise in the number of appeals in recent years, and that a quarter of current appeals were against the Scottish Government.

The office of Scottish Information Commissioner (SIC) was set up by the Scottish Parliament in 2003 to enforce freedom of information (FoI) law. Its budget for 2023-24 is £2.2m and it employs 24 staff in St Andrews, Fife.

A new commissioner, former police inspector David Hamilton, was appointed in October 2023. He succeeded Daren Fitzhenry, who had been in post since 2017.

The Ferret reported in October that Fitzhenry’s last report condemned the Scottish Government for its delays in responding to FoI requests. In May 2023 the government had a backlog of 117 requests, and some FoI responses had been delayed for over two years.

FoI requesters then contacted us pointing out that they had suffered similar delays when appealing to the SIC against public bodies keeping information secret. One had made a formal complaint.

The Ferret asked the SIC for the latest data on the time taken to handle appeals. “As at 31 October 2023, we had 284 valid open cases which had yet to be allocated to an investigator,” said an SIC spokesperson.

“The average age of cases which had yet to be allocated to an investigator was 8.37 months.” The total number of open cases was 451, with 140 under investigation and 27 awaiting validation.

The SIC also said it had closed 150 cases between 1 April and 31 October 2023. Only 48 had been resolved within six months, with 18 taking 6-12 months, 69 taking 12-24 months and 15 taking more than two years.

One live appeal has been going on for more than two years and eight months. It’s against Angus Council for withholding information on a planning application for 300 new houses in Forfar.

The UK Information Commissioner’s Office in Cheshire told The Ferret that between April and June 2023 it reached a decision within six months in 93 per cent of FoI appeals. It had 39 appeals unresolved after 12 months, 31 of which were against the Cabinet Office in London.

‘Information withheld is justice denied’

The formal complaint about SIC delays was made by Guy Linley-Adams, a lawyer and FoI requester with the environmental campaign group, WildFish. He had to wait 16 months for an appeal against the Scottish Environment Protection Agency to be allocated to an investigator. 

The delay was “unacceptable”, Linley-Adams told the SIC. He highlighted a recent decision by the UK commissioner saying that “information delayed is essentially information denied”.

Because WildFish had been deprived of information, he argued, “it cannot participate in environmental decision-making from a fully-informed position”. 

The Campaign for Freedom of Information in Scotland called for “strategic action” to remedy the appeals backlog. “Information withheld is justice denied,” said campaign director, Carole Ewart

“Having to wait years, instead of four months, for a decision is a sign of a system in trouble. It is not in the public interest to have an enforcement mechanism debilitated through lack of cash from the Scottish Parliament.”

Ewart pointed out that appeals were increasingly complex, and could take longer to resolve. “Now is the time for a realistic assessment of what resources the commissioner actually needs for investigations, as well as the intervention work with bodies which are failing,” she added.

The Liberal Democrat MSP, Willie Rennie, criticised the Scottish Government for not releasing information. “The risk with long waits for investigations to conclude is that information may be out of date or worthless by the time it is finally released,” he said.

“It’s time to look at beefing up the SIC’s office to ensure that the government is held to account in a timely fashion.”

The Scottish Labour MSP and FoI campaigner, Katy Clark, urged the SIC to review its performance on appeals. “If there are reasons why appeals are taking so long they should be shared,” she said.

Information requests ‘outstrip budget’

The SIC pointed out that 62 per cent of cases in 2022-23 were closed within four months, with an average wait of 5.4 months. “This is clearly not the experience for all applicants, and a number of cases are, unfortunately, taking significantly longer,” said an SIC spokesperson.

“Our current open caseload is far larger than we would like, and this is clearly having an impact for many of our applicants in terms of the time taken to resolve their case.”

According to the SIC, nearly three quarters of appeals in 2022-23 were decided “wholly or partially” against public authorities. “There is work to be done to support public authorities to get their FoI responses right first time, in order to reduce the need for cases to be appealed to the commissioner,” said the spokesperson.

“The number of appeals the commissioner is dealing with has increased significantly over the last few years, far outstripping our budget allocation. A quarter of our current open caseload relates to a single public authority – the Scottish Government.”

David Hamilton, the new Scottish Information Commissioner (photo thanks to the commissioner’s office)

The SIC also pointed out that failing to allocate appeals to investigators did “not necessarily mean that there is no forward motion”. Before appeals were allocated public authorities could be asked to comment, or to provide withheld information.

The SIC stressed that reducing the backlog of appeals was a “key priority” of the new commissioner, David Hamilton. He was exploring solutions, including “streamlining” procedures and recruiting staff.

“Timely and prompt responses to FoI requests help to ensure that people are able to access information when they are most in need of it,” Hamilton said.

“This is equally true for my office, and I will be working hard to resolve our current open appeals to ensure cases can be investigated and resolved as swiftly as possible.”

Cover image of the Scottish Information Commissioner’s headquarters in St Andrews, thanks to the commissioner’s office.

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